What limits should be placed on a judge's freedom to speak to the news media and to defend his or her opinions in the court of public opinion? That question is very much in debate in Massachusetts, where a proposed change in the Code of Judicial Conduct would broaden the current rule to allow a judge to provide additional explanation for a decision at any time after issuing it -- a so-called second-chance opinion.

In January, the state's Supreme Judicial Courtannounced that it had appointed a panel to consider whether to revise the rule limiting public comment by judges. As it now stands, Canon 3B(9) of the code requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." As I noted then at my Media Law blog, the rule came under fire most recently when one-time Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who was charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

The ad hoc committee has published its proposed revision to the canon, and the proposal that is drawing the most controversy would allow a judge to add an explanation for a decision at any time after making it. The proposed commentary explains:

[A] judge, at any time, may supplement the court record by a written memorandum explaining his or her reasons for judicial action. For example, to educate the public, if he or she deems it appropriate, a judge may choose to issue a written memorandum in order to articulate in greater detail the rationale for the judge’s action at the time that action was taken. ... Canon 2 does not prohibit a memorandum of decision from being issued, even in response to public criticism, when that memorandum
is based solely on the facts in the record and reflects the judge's reasoning at the time of the original decision, whether or not that reasoning previously was articulated.

Two members of the ad hoc committee have issued separate statements to express their disagreement with this proposed change. Juvenile Court Judge Jay D. Blitzman wrote in his statement that a judge's discretion to explain a decision should not be unfettered. He does not oppose supplemental memoranda, but believes the canon should provide clearer parameters about when they are appropriate. "Judges should be circumspect about when, and if, it is appropriate to file supplemental memoranda," he says.

Meanwhile, Harvard Law Prof. Andrew Kaufman says in his statement that the committee's reasoning in allowing second-chance opinions "is both disingenuous and wrong." While acknowledging that a judge has an interest -- perhaps even a First Amendment interest -- in self-defense against public criticism, Kaufman writes:

The strength of these interests is weakened by the fact that the judge already passed up, for any of a variety of possible reasons, an opportunity to explain, to educate, and to be accountable to the public. It is also weakened by the
fact that the 'educate the public' justification is not altruistic. It is usually triggered by the desire to defend against public criticism.

The SJC is seeking public comments on the proposed changes to the judicial canon. It has set Aug. 22, 2008, as the deadline. The committee's report and the separate statements of Blitzman and Kaufman can be found here.

Comments

A Second Chance for Judges to Comment?

What limits should be placed on a judge's freedom to speak to the news media and to defend his or her opinions in the court of public opinion? That question is very much in debate in Massachusetts, where a proposed change in the Code of Judicial Conduct would broaden the current rule to allow a judge to provide additional explanation for a decision at any time after issuing it -- a so-called second-chance opinion.

In January, the state's Supreme Judicial Courtannounced that it had appointed a panel to consider whether to revise the rule limiting public comment by judges. As it now stands, Canon 3B(9) of the code requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." As I noted then at my Media Law blog, the rule came under fire most recently when one-time Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who was charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

The ad hoc committee has published its proposed revision to the canon, and the proposal that is drawing the most controversy would allow a judge to add an explanation for a decision at any time after making it. The proposed commentary explains:

[A] judge, at any time, may supplement the court record by a written memorandum explaining his or her reasons for judicial action. For example, to educate the public, if he or she deems it appropriate, a judge may choose to issue a written memorandum in order to articulate in greater detail the rationale for the judge’s action at the time that action was taken. ... Canon 2 does not prohibit a memorandum of decision from being issued, even in response to public criticism, when that memorandum
is based solely on the facts in the record and reflects the judge's reasoning at the time of the original decision, whether or not that reasoning previously was articulated.

Two members of the ad hoc committee have issued separate statements to express their disagreement with this proposed change. Juvenile Court Judge Jay D. Blitzman wrote in his statement that a judge's discretion to explain a decision should not be unfettered. He does not oppose supplemental memoranda, but believes the canon should provide clearer parameters about when they are appropriate. "Judges should be circumspect about when, and if, it is appropriate to file supplemental memoranda," he says.

Meanwhile, Harvard Law Prof. Andrew Kaufman says in his statement that the committee's reasoning in allowing second-chance opinions "is both disingenuous and wrong." While acknowledging that a judge has an interest -- perhaps even a First Amendment interest -- in self-defense against public criticism, Kaufman writes:

The strength of these interests is weakened by the fact that the judge already passed up, for any of a variety of possible reasons, an opportunity to explain, to educate, and to be accountable to the public. It is also weakened by the
fact that the 'educate the public' justification is not altruistic. It is usually triggered by the desire to defend against public criticism.

The SJC is seeking public comments on the proposed changes to the judicial canon. It has set Aug. 22, 2008, as the deadline. The committee's report and the separate statements of Blitzman and Kaufman can be found here.